[2008] KEHC 2012 (KLR)
The court found that the plaintiff's suit was time barred under Section 7 of the Limitation of Actions Act. The defendant entered the suit land in 1993, and the twelve-year limitation period expired in 2005. The suit was filed in 2007, beyond the statutory period, and no leave was sought to file out of time. The...
Source-derived case information.
- Citation
- [2008] KEHC 2012 (KLR)
- Parties
- Plaintiff: Nyaribo Keraso Justus; Defendant: Francis Amenya Ndubi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 54 of 2007
- Procedural Posture
- Civil Case / Judgment
- Outcome
- suit dismissed as time barred
- Judges
- DK Musinga
- Legal Topics
- Limitation of Actions, Adverse Possession, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyaribo Keraso Justus
Plaintiff
Francis Amenya Ndubi
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff's suit for recovery of land is time barred under the Limitation of Actions Act.
- 2 Whether the defendant's occupation amounts to continuing trespass and if this affects limitation.
- 3 Whether the plaintiff has locus standi to institute the suit as a legal representative.
Ratio Decidendi
The court found that the plaintiff's suit was time barred under Section 7 of the Limitation of Actions Act. The defendant entered the suit land in 1993, and the twelve-year limitation period expired in 2005. The suit was filed in 2007, beyond the statutory period, and no leave was sought to file out of time. The court held that even in cases of continuing trespass, the property owner must bring the suit within twelve years from the date the trespass commenced. The plaintiff's argument that continuing trespass extended the limitation period was rejected. Consequently, the suit was dismissed as statute-barred.
Court Disposition
suit dismissed as time barred
Orders
- The plaintiff's suit is dismissed as time barred.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Civil Case 54 of 2007
NYARIBO KERASO JUSTUS …..………….…… PLAINTIFF
VERSUS
FRANCIS AMENYA NDUBI …………..….. DEFENDANT
JUDGMENT
The plaintiff stated in his plaint that he is legal the representative of the late Shadrack Nyaribo Momanyi, hereinafter referred to as “the deceased,” who died on 9th October 1993. At the time of his death, the deceased was the registered proprietor of land parcel number north Mugirango/
Ikonge/1059 hereinafter referred to as “the suit land.” Soon after the death of the deceased, the defendant trespassed upon the suit land and started tilling the same. He is still occupying the suit land.
The plaintiff urged the court to issue an eviction order against the defendant and further prayed for a permanent injunction to restrain the defendant, his servants and/or agents from re-entering the suit land upon eviction.
The defendant was served with summons to enter appearance as well as plaint but he neither entered appearance nor filed any defence.
During the hearing, the plaintiff produced Letters of Administration Ad Litem issued to him on 14th May, 2007 in respect of the estate of the deceased. I may state that though the Letters of Administration Ad Litem gave the plaintiff capacity to file this suit, he is not the personal representative of the accused. A personal representative is the executor or administrator of a deceased person.
An administrator is a person to whom a grant of letters of administration has been made. The plaintiff also produced a title deed in respect of the suit land, (P.Exh.2). It was issued to the deceased on 28th February, 1990.
Mr. G. J. M. Masese for the plaintiff submitted that the plaintiff had, on a balance of probabilities, proved his case. He added that since the defendant’s acts amount to continuing trespass, the plaintiff’s suit was not time barred. He therefore urged the court to grant the relief as sought in the plaint.
Section 7 of the Limitation of Actions Act Cap 22 states as follows:
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, that person.”
In this case, the defendant moved into the suit land in 1993 or thereabout. The twelve years period expired in 2005. No leave was sought to file the case out of time.
Even in a situation where a person is in a continuing trespass to another’s property, the property owner must still bring the suit within twelve years from the date when the trespass commenced.
I hold that the plaint’s suit is time barred and dismiss the same.
DATED, SIGNED and DELIVEREDat KISIIthis 27thday of June, 2008.
D. MUSINGA
JUDGE
Delivered in open court in the presence of:
Mr. Ochwangi H/B for Mr. G. J. M. Masese for the plaintiff
N/A for the defendant
D. MUSINGA
JUDGE